Kenya Court Leaves Arrest Warrant for Sudan's Bashir in Effect

Kenya’s second highest court has temporarily upheld an arrest warrant for Sudan’s President Omar Ahmad Hassan al-Bashir who is wanted by the International Criminal Court to face eight counts of crimes against humanity and genocide.

The arrest warrant will remain in force until the Court of Appeal determines an appeal Attorney General Githu Muigai has made on behalf of the Kenyan government. The government is appealing a High Court ruling made in November this year, issuing a provisional arrest warrant that the Minister of State for Internal Security is required to effect if al-Bashir travels to Kenya.

A three-man bench of the Court of Appeal, presided over by Justice Emmanuel Okubasu, made the ruling on the arrest warrant Tuesday in response to an application made by Senior Deputy Solicitor General Muthoni Kimani for the court to issue interim orders holding off the warrant until the government’s appeal is determined.

“We are not convinced that the reasons given by Ms Kimani are sufficient,” Okubasu said while announcing the brief ruling.

Earlier in the morning, the three judges heard preliminary objections to the government’s application. Okubasu said the arguments for and against the preliminary objection raise “weighty issues” and the judges will make their decision known next year on 24th January.

Wilfred Nderitu, representing the Kenya section of the International Commission of Jurists that had initiated the case last year, referred to the constitution to argue that the Attorney General, represented by Kimani, was not the right person to make the appeal. Nderitu argued that since the constitution does not give the Attorney General authority over criminal matters, the Attorney General cannot make arguments in a criminal case. Nderitu also argued that the case had been wrongly filed as a civil appeal, when it was actually dealing with criminal proceedings.

“The Attorney General is in no different position with regards to the case as a charcoal burner, an architect or a midwife…He is as neutered as any individual in this room,” Nderitu said.

Kimani, however, argued that when the Kenya section of ICJ filed its initial case before the High Court, the Attorney General was a respondent together the Minister of State for Internal Security and so it was only fair that the Attorney General appeals any decision arising from the High Court’s ruling.

“I’ve not seen any jurisprudence that a respondent has no right to represent himself before a court of law,” Kimani said. “It’s our humble submission we are correctly before Your Lordships and there is nothing in the constitution that would stop the Attorney General from appearing.”

The Kenya section of the International Commission of Jurists initiated the case in November last year after al-Bashir visited Kenya as a guest of Kenyan President Mwai Kibaki. In August last, the Kenyan leader had invited al-Bashir, among several other African heads of state, to witness ceremonies to officially bring into effect Kenya’s new constitution. Kenya’s new supreme law received two-thirds public support in a 4th August, 2010 referendum.

ICJ’s argument was that Kenya as a member of the ICC was obligated to arrest al-Bashir when he landed in the country for that occasion, because the court had sent two requests for such cooperation to member states. The ICJ, the Attorney General and a third party made their arguments in November and December last year. High Court Judge Nicholas Ombija announced his ruling on 28th November this year. His ruling not only requires the government to effect the arrest warrant if al-Bashir visits Kenya, but also allows ICJ or anyone else to arrest al-Bashir if the government won’t.


  1. I don’t think Nderitu’s argument on the AG’s locus standi has any merit. The AG was a party in the lower court, and orders were directed at him. This isn’t a “criminal case” at all!!!


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